Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 589 (PAT)

Sachendra Kumar Singh v. Vinod Nandan Sinha

2007-03-22

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Tenant-defendant, aggrieved by the judgment and decree dated 2nd of May, 2005 passed by Munsif.Patna city in Title Eviction Suit No. 18 of 1998 decreeing the suit for eviction on the ground of bonafide personal necessity has preferred this revision application under Sec.14(8) of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1982. 2. Plaintiff filed the suit for eviction on the ground that he requires the suit premises reasonably and in good faith, inter alia pleading that he owns and possesses premises bearing holding No. 286 B/254, Circle No. 103, Ward No. 20/26 situated at Mohallah Agamkuan, Police Station Alamganj in the district of Patna. The defendant is month to month tenant according to English calendar, in the eastern Katras in the ground floor of the aforesaid premises fully described in Schedule I of the plaint at a monthly rental of Rs. 800.00 excluding the electric charges, payable to the plaintiff. 3. According to the plaintiff, defendant paid rent of the tenanted premises up to May 1997 but since June, 1997 he has not paid any rent to him despite repeated demands and hence liable to be evicted on the ground of default in payment of rent for more than two months. It has been further pleaded that the defendant had taken the suit premises on rent from the plaintiff for running an Optical Centre but in breach of the terms of tenancy besides the said business, three more business,namely, Chandan Photo Stat, Chandan X-ray and S.T.D, booth are being run in the said premises. 4. According to the plaintiff, the defendant is liable to be evicted on ground of default, and breach of terms of tenancy too but as the plaintiff requires the suit premises reasonably and in good faith, for its speedy disposal he had filed suit for eviction on the ground of personal necessity only. According to him he is unemployed Pharmacist and needs suit premises for starting Medicine Shop, which is most suitable for the purpose. According to him the decree of partial eviction will not satisfy the entire needs of the plaintiff. 5. After service of summons defendant appeared and filed the written statement taking usual plea of suit being not maintainable, barred by limitation and defective on account of non-joinder of the necessary party. Besides he denied the relationship of landlord and tenant between them. 5. After service of summons defendant appeared and filed the written statement taking usual plea of suit being not maintainable, barred by limitation and defective on account of non-joinder of the necessary party. Besides he denied the relationship of landlord and tenant between them. According to him, the premises in question was let out to his wife Anita Singh and said Anita Singh had deposited a sum of Rs.50,000.00 (fifty thousand) towards the arrears of electric bills and in order to misappropriate the aforesaid money the suit has been filed. According to him, he is not the tenant of the plaintiff but his wife is the tenant and had filed Title Suit No. 171 of 1998 against the present plaintiff which is pending in the Court of Subordinate Judge,I, Patnacity. Allegation of non-payment of rent as also the breach of the terms of the tenancy have been denied. 6. On the basis of the pleadings of the party various issues have been framed, including the following issues:- (i) Does the relationship of landlord and tenant exist between the plaintiff and the defendant? (ii) Does the plaintiff require the suit premises reasonably and in good faith? (iii) Will the necessity of the plaintiff be satisfied by partial eviction of the suit premises? 7. It is relevant here to state that during the pendency of the suit, on an application filed by the plaintiff, the defendant was directed to deposit the arrears of rent and current rent, which direction he did not comply and hence in view of Sec.15 of Bihar Buildings (Lease Rent & Eviction) Control Act, 1982, hereinafter referred to as the Act, his defence was struck off. 8. The plaintiff led oral as well as documentary evidence in support of his plea. The Court below on the basis of the material on record and also taking into account the facts that the defence of the defendant has been struck off came to the conclusion that relationship of landlord and tenant exists between the plaintiff and the defendant of the tenanted premises. It also held that the plaintiff required premises reasonably in good faith for his own use and occupation and further his requirement will not be satisfied by partial eviction of the tenanted premises. Accordingly, it decreed the suit and directed the tenant to hand over the vacant possession of the tenanted premises to the plaintiff within stipulated time. It also held that the plaintiff required premises reasonably in good faith for his own use and occupation and further his requirement will not be satisfied by partial eviction of the tenanted premises. Accordingly, it decreed the suit and directed the tenant to hand over the vacant possession of the tenanted premises to the plaintiff within stipulated time. 9. Defendant-tenant, aggrieved by the same preferred present revision application. During the pendency of the revision application sole plaintiff died on 1.4.2006, leaving behind his widow and two sons. Defendant filed application for deleting his name and for substituting his heirs. By order dated 18.10.2006 the name of the plaintiff was deleted and substituted by his heirs and they are contesting the present revision application. 10. Mr. Parmeshwar Prasad, appearing on behalf of the defendant-petitioner submits that the original plaintiff himself, needed the suit premises for starting Medicine-Shop and undisputedly he is dead.-According to him this subsequent event of death of the landlord, for whose necessity the premises is required, fit to be taken into account and, on account of his death, the necessity does not survive and hence, the decree for eviction is fit to be set aside on this ground alone. He points out that the plaintiff had nowhere averred that the suit premises is needed for himself and his other family members. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Phool Rani vs. Naubat Rai ( AIR 1973 SC 2110 ) and my attention has been drawn to paragraph 11 of the judgment which reads as follows:- "Thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds-we will forget for a moment that the plaintiff is dead-the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application anytheless a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff. 11. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff. 11. In fairness to him he points out that the view expressed in Phool Ranis case (Supra) has been found to be incorrect by the Supreme Court in the case of Shantilal Thakordas and Ors. vs. Chimanlal Maganlal Telwala ( AIR 1976 SC 2358 ) on the premise that the landlord pleaded for eviction for residence for himself and members for his family and in this connection my attention has been drawn to the following passage from paragraph 4 of the ji.idnment, which reads as follows:- "In our considered opinion in face of the wordings of Sec.14(1)(e) of the Delhi Act, the view expressed in Phool Ranis case, as slated above, is not correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members for his family", then the requirement of both the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of his family of the original landlord was his requirements and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of the deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord". 12. Mr. Prasad, emphasises that decree for eviction on the ground of personal necessity can be passed not only on its proof on the day the landlord commences the proceeding for eviction but it must subsist till the date the decree is passed by the final Court. 12. Mr. Prasad, emphasises that decree for eviction on the ground of personal necessity can be passed not only on its proof on the day the landlord commences the proceeding for eviction but it must subsist till the date the decree is passed by the final Court. Reliance has been placed on a decision of the Supreme Court in the case of Hasmat Rai & another V/s. Raghunath Prasad, 1981 3 SCC 103 and my attention has been drawn to the following passage from paragraph 14 of the judgment which reads as follows:- "If he commences the proceedings for eviction oh the ground of personal requirement he must be able to allege and show the requirement on the date of initiation of action in the Court which would be his cause of action. But that is not sufficient. This requirement must continue throughout the progress of the litigation and must exist on the date of the decree and when we say decree we mean the decree of the final court." 13. Mr. Sukumar Sinha, Senior Advocate, appearing on behalf of Opposite party, however, contends that the bonafide need of the landlord is to be seen as on the date of the institution of the suit and in case a decree for eviction is passed on the ground of personal necessity, the death of the landlord at a later stage of the proceeding will make no difference. According to him after the decree is passed on the ground of personal necessity of the landlord, on his death, his heir is only required to defend the decree. In fairness to Mr. Sinha, he submits that the subsequent event of death can be taken into account but that shall not in any way tell upon the validity of the decree. 14. In view of aforesaid, I have no hesitation in holding that events taking place subsequent to the filing of the eviction petition can be taken into consideration for the purpose of adjudication until a decree is made. 15. Despite this, in view of the submission advanced, the following question requires consideration:- (i) Whether the decree of eviction passed on the ground of personal necessity of the landlord is fit to be set aside on his death during the pendency of the revision application before this Court? 16. 15. Despite this, in view of the submission advanced, the following question requires consideration:- (i) Whether the decree of eviction passed on the ground of personal necessity of the landlord is fit to be set aside on his death during the pendency of the revision application before this Court? 16. Having given my most anxious consideration, I am of the opinion that death of the landlord taking place after decree for eviction is passed in his favour, during the pendency of the revision application filed by unsuccessful tenant shall not enure to his benefit. In my opinion, that estate is entitled to the benefit which under a decree has fallen in favour of the plaintiff and thereafter the legal representative is entitled to defend that decree, when challenge is made to such decree in further proceedings like the revision. After passing of the decree by the trial Court the original landlord is to get possession of the premises and tenant can remain in occupation of the premises only on account of the stay order passed by the Court. Systemic delay in disposal of the proceeding by the superior Court and such stay may not cause prejudice to the heirs on account of death of the original plaintiff. It is well known maxim "actus curiae meminem gravavity" i.e. an act of the Courts shall prejudice no men shall come into operation. Therefore, I am of the considered view that the heirs of the landlord shall be fully entitled, to defend this revision preferred by the tenant and entitled to claim possession of the premises on the cause of action originally pleaded and on the basis whereof the lower Court had passed the decree for eviction. The decision of the Supreme Court in the case of Phool Rani (Supra), relied on by the petitioner itself makes a distinction between cases in which the death of the plaintiff. landlord occurs after a decree for possession was passed in his favour i.e. during the pendency of the appeal/revision filed by the unsuccessful tenants, the death of the plaintiff-landlord before passing of the decree of eviction in the trial Court and cases in which the death of the decree-holder-landlord is pleaded as defence in execution proceeding. landlord occurs after a decree for possession was passed in his favour i.e. during the pendency of the appeal/revision filed by the unsuccessful tenants, the death of the plaintiff-landlord before passing of the decree of eviction in the trial Court and cases in which the death of the decree-holder-landlord is pleaded as defence in execution proceeding. With regard to the cases falling in the first category i.e. cases in which the death of the plaintiff occurs after decree for possession is passed in his favour, during the pendency of the revision application the estate is entitled to the benefit which under a decree, has accrued in favour of the plaintiff, and therefore, the legal representatives are entitled to defend further proceeding, like an appeal which challenges that benefit. 17. In view of aforesaid, the decision of the Supreme Court in the case of Phool Rani (Supra), relied on by Mr. Prasad, instead of supporting his contention goes against him. In the said case distinction has been made between the cases in which plaintiff-landlord dies after passing of the decree which would be evident from paragraph 14 of the judgment which reads as follows:- "14. Cases of the first category are distinguishable because the decision therein are explicable on the basis, though not always so expressed, that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and therefore the legal representatives are entitled to defend further proceedings, like an appeal, which constitute a challenge to that benefit." 18. The view which I have taken finds support from a large number of decisions of the Supreme Court. 19. The view which I have taken finds support from a large number of decisions of the Supreme Court. 19. In the case of Kamleshwar Prasad vs. Pradumanju Agarwal [ (1997)4 SCC 413 ], the effect of death of the landlord after the passing of the decree was considered and it was held that the crucial date for determining is the day on which the application is filed and after passing of the decree the death of the landlord shall itself not amount to cessation of personal necessity which would be evident from the following passage from paragraph 3 of the judgment which reads as follows:- "That apart, the fact that the landlord needed the premises in question for starting a business which fact has been found by the appellate authority, in the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court the bonafide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son". 20. The Supreme Court in the case of Gaya Prasad V/s. Pradeep Srivastava, 2001 2 SCC 604 , considered its earlier authorities on the question including its decision in the case of Hasmat Rai (supra) relied on by the petitioner and observed as follows:- " "15.The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused." "17.Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bonafide need concurrently found by the factfinding courts." 21. The Supreme Court in the case of G.C.Kapoor V/s. Nand Kumar Bhasin and Others, 2002 1 SCC 610 , quoted with approval its earlier judgment in the case of Gaya Prasad (Supra). 22. In my opinion, subsequent event like the death of the landldord if taken note of at every stage till the decree attains finality there will be no end to litigations which will lead to miscarriage of justice in many cases. From the start to the ultimate termini a lis takes several years. It is a malady afflicting the Indian Judicial system. During this long interval many many events are bound to take .place in relation to the parties as well as subject matter of the lis and if such subsequent events on account of the malady of the system is submerged with the cause of action it shall shatter the confidence of the litigant in the judicial system. This view has been succinctly put forth by the Supreme Court in the case of Shakuntala Bai vs. Narayan Das ( AIR 2004 SC 3484 ) in the very first paragraph of its judgment which reads as follows:- "1. It is a shocking case, A suit for eviction of a tenant was instituted more than 42 years back in March, 1962 for the bonafide need of carrying on business by the owner landlord but his widow and sons are still knocking the doors of Court of Justice. During the pendency of the appeal filed by the tenant the landlord dies leaving a widow and minor sons but this, the High Court thought, came to the advantage of the tenant, rendering the suit liable for dismissal, little realizing that they also needed some place to carry on business for survival. Such extreme views erode the faith of people in the judicial system prompting them to take recourse of extra judicial methods to recover possession of their property." 23. Such extreme views erode the faith of people in the judicial system prompting them to take recourse of extra judicial methods to recover possession of their property." 23. In the case of Shakuntala Bai vs. Narayan Das (Supra) on review of its earlier decisions in the case of Gaya Prasad (Supra), G.C.Kapoor (Supra), Kamleshwar Prasad (Supra), Shantilal Thakordas (Supra) and Phool Rani (Supra) came to the conclusion that the death of the landlord during the pendency of the appeal shall not come to the advantage of the tenant rendering the suit liable for dismissal, which would be evident from the following passage of paragraph 15 of the judgment which reads as follows:- "15. If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle, if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and collosal waste of public time. There is no warrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come." 24. In view of the aforesaid the submission of Mr. Prasad has no legs to stand and it is rejected accordingly. 25. Mr. Prasad, faintly submits that failure on the partof the Court below to consider the question of partial eviction vitiates the judgment. Mr. Sinha, submits that the Court below has considered this question and has come to the conclusion that partial eviction shall not satisfy the need of the landlord. He submits that the said conclusion arrived at by the Court below is on appraisal of evidence, which does not call for interference by this Court in the present revision application. 26. Having considered the rival submission, I do not find any substance in the submission of Mr. Prasad. He submits that the said conclusion arrived at by the Court below is on appraisal of evidence, which does not call for interference by this Court in the present revision application. 26. Having considered the rival submission, I do not find any substance in the submission of Mr. Prasad. The Court below has taken into consideration the size of the suit premises i.e. 8 x 30 and finding that said premises is required to-start Medicine Shop, partial eviction from the suit premise will not satisfy the need of the plaintiff. In view of aforesaid, it cannot be said that the Court below had not considered this question or the conclusion arrived at is any way erroneous. 27. In the result, I do not find any merit in the application and it is dismissed accordingly, but without any order as to cost.